KINGDOM OF SAUDI ARABIA
Ministry of Higher Education
King Abdulaziz University
Centre for Research in Islamic Economics
THE ECONOMIC RELEVANCE
OF
THE SHARIA MAXIMS
(al Qawaid al Fiqhiyah)
S.M. Hasanuzzaman
Scientific Publishing Centre
King Abdulaziz University
Jeddah, Saudi Arabia
Digital Composition for Web by:
Syed Anwer Mahmood
Islamic Economics Research Centre
Published on net 2007
KINGDOM OF SAUDI ARABIA
Ministry of Higher Education
King Abdulaziz University
Centre for Research in Islamic Economics
THE ECONOMIC RELEVANCE
OF
THE SHARIA MAXIMS
(al Qawaid al Fiqhiyah)
S.M. Hasanuzzaman
Scientific Publishing Centre
King Abdulaziz University
P.O. Box 1540, Jeddah 21441
Jeddah, Saudi Arabia
FOREWORD
al Qawaid (maxims) enjoy an important place in Islamic
jurisprudence. They encapsulate concepts and precepts that can
help one understand details of Law as it stands. More important
than that, they are capable of helping one in arriving at the
appropriate ruling where no explicit law exists.
Islamic economists are frequently called upon to look into
situations not covered by existing rules. They also need guide posts
when charting the vast expanse of rules that are already there. They
are, like all students of Islamic Law, in need of “maxims”.
The Centre was pleased to endorse Dr. S.M. Hasanuzzaman’s
proposal of a study dealing exclusively with maxims relevant for
economic issues. It is still more pleased to present the fruits of Dr.
Hasanuzzaman’s labour to scholars. Credit goes to the author, for
this is the first-ever work on this subject in English. However, it is
only a beginning. In all humility it is being published to invite
further deliberation and discussion. We are especially keen to
discover more instances of modem applicability of these and other
maxim.
Any contribution to the subject will be welcome.
Dr. Mohamed A. EIgari
Director
vii
THE ECONOMIC RELEVANCE OF
THE SHARIA MAXIMS
(al Qawaid al Fiqhiyah)
CONTENTS
Page No.
xi
xiii
1
Acknowledgement
Abstract
Introduction
Legal Maxims On:
Claim and Practice
Doubt and Certainty
Eliminating Detriment
The Rules of Relaxation
Give and Take
The Rules About Benefit Versus Liability
Public Welfare vis-à-vis the Discretion of the Government
The Role of Custom and Usage
Penalty for Evasion
Limitations:
(i) As to analogy
(ii) As to tricky device
Notes and References
Bibliography
Appendix (Legal Maxims)
ix
5
11
14
22
38
41
45
48
54
55
55
56
57
65
67
THE ECONOMIC RELEVANCE OF
THE SHARIA MAXIMS
(al Qawaid al Fiqhiyah)
ACKNOWLEDGEMENT
In finalizing the paper I am grateful to Shaykh Husain Hamid
Hassan, Rector, International Islamic University, Islamabad, Dr.
Justice Tanzilur Rahman, Chief Justice, Federal Shariat Court, Mr.
Khalid M. Ishaq, Advocate, and Dr. Mahmood Ghazi, for their
valuable comments. In particular I am indebted to Mr. Justice Mufti
Muhammad Taqi Usmani, Judge, Sharia Appellete Bench, Supreme
Court of Pakistan and my brother Dr. Zafar Ishaq Ansari, Director
General, Institute of Islamic Research, Islamabad, for a thorough
review of the paper, in addition to useful explanations and guidance
given to me by Mufti Muhammad Rafi Usmani of Darnl Ulum,
Karachi, the errors still left are my own.
xi
ABSTRACT
The rules of the Sharia signify the set of principles determined with
precision and their subordinate legal maxims which the great Muslim
jurists have derived from the Quran and the Sunna to determine the
Islamicity of any act, institution and policy. They are the systematic
exposition of the spirit of the text which coincide and guide man towards
different situations in human society throughout the ages. This study is
an attempt at selecting the largely accepted rules (legal maxims) that are
relevant to economic life of individuals and society, and applying them to
contemporary situations. These maxims, if broadly classified, relate to
claim and practice, doubt and certainty, eliminating detriment, the rules,
of relaxation, give and take, benefit versus liability, public welfare vis-avis the discretion of the government, the role of custom and usage, and
penalty for evasions. The study begins with a statement of limitations to
restrict their liberal application.
The subject has been discussed in all major works of jurisprudence
including some works dealing only with legal maxims. But it will be
found that in almost all these works the scholars have confined
themselves to applying these maxims either on rituals or on citing the
precedents of the few economic activities which were prevalent in the
medieval period. This study, while retaining this latter part, is an attempt
at applying the maxims to contemporary economic activities, institutions
and policies. Being perhaps the first attempt of its kind, the study does
not include all the maxims that may possibly be applied on economic
matters nor those which are controversial as judged by the majority of
jurists.
xiii
THE ECONOMIC RELEVANCE OF
THE SHARIA MAXIMS
(al Qawaid al Fiqhiyah)*
INTRODUCTION
One of the proposed definitions of Islamic economics
(Journal of Research in Islamic Economics, Vol. 1, No. 2) reads
thus:
“Islamic economics is the knowledge and the application of
the injunctions and the rules of the Sharia in regard to acquisition
and disposal of the available resources for providing satisfaction to
the individuals in order to enable them to perform their obligations
to Allah’ and the society”
In this definition the word injunctions signifies the
prescriptive and the prohibitive injunctions of the Qur’an and the
Sunna. The rules of the Sharia used in the definition signify the set
of principles determined with precision and their subordinate legal
maxims(1) which the great Muslim jurists have derived from the
Do’s and Don’ts, to ensure and to determine the Islamicity of any
act, institution or policy. These rules are the systematic exposition
of the spirit of the legal text (nass) intended to guide man towards
_____________________________
*
The author is grateful to the two referees whose comments helped him a lot in
revising the study.
1
2
different situations in human society throughout the ages. They
provide broad contours within which policy making can be pursued
and its validity judged. The legal maxims, on the other hand, are
amenable to trade-offs and substitutions.
Before reproducing these rules and applying them, as far as
possible, to contemporary economic situations and problems it is
necessary to take care of the following precautions that are
necessary to protect one from fallacious analogy, misleading overconfidence and lapse:
(1)
Recourse may be made to reasoning based on these rules only
if the Qur’an and the Sunna do not provide guidance on an
issue. Consensus of early jurists (Ijma) also commands
priority over the legal maxims. Injunctions of the Qur’an and
instructions of the holy Prophet are also to be taken as a
whole. The method of deriving conclusions from them are
known and should be followed. Legal decisions based on
them are contained in the compilations made by great jurists
and scholars.
Jurists have also recorded the judgements and the opinions
that are based on the consensus (Ijma) of early ‘u/ama’. This
leaves a large number of issues that require a decision keeping
within the limits of the Sharia. For example, the legal opinion
in regard to profit-sharing in a joint venture is that:
“Profit is to be distributed
according to the agreement but loss is
to be borne in proportion to capital
contribution”.(2)
3
In this rule the ratio of the distribution of profit according to
agreement can be reviewed in light of business conditions. It
may be left to the partners to decide the ratios of profitsharing or otherwise an Islamic government or central bank
may fix a range within which the partners should share
profits. The government may even lay down that, like losses,
profit-sharing would also follow the ratio of respective capital
contributions by different partners. The liability of loss,
however, has to be borne strictly in proportion of capital
contribution since this rule enjoys the consensus of the
scholars. The government has no right to change this ratio nor
can the business partners make an agreement that violates the
rule. Similarly in Bay ‘sa/am advance payment of cash is a
condition that has been laid down by consensus of ‘Ulama’.
Deferred payment or adjustment of price against loan is not
permissible.(3) It is the consensus of ‘Ulama’ that business
partnerships/(Shirka and Mudaraba) are treated as legal
forms of joint venture.(4) Thus there can be disagreement
about forming a joint stock limited liability company, a trust,
a cartel, a syndicate or a corporation but the legality of Shirka
and Mudaraba may not be doubted.
(2)
It has to be fully kept in mind that all the injunctions of the
Sharia seek to benefit human beings and eliminate harm. But
those benefits and harms are not entirely left to the judgement
of man. In a large number of cases those benefits and harms
have been specified in the Qur’an and Hadith and should be
made the criteria of judgement. In cases where benefits and
harms are not pointed out human intellect will judge the virtue
or vice of any act. Thus intellect would be guided by sound
reasoning, experience, prevalent practice and sound
judgement of scholars who have well understood the spirit of
the Sharia and are scrupulous. Whether or not state trading
should be allowed depends largely on experience. Should
there be a difference in the wages of different workers and in
4
the pay-scales different categories of employees depends upon
custom and prevalent practice. Should any industry be
nationalized in the interest of the community depends upon
sound judgement of competent persons. The Sharia prohibits
those trades and activities that involve ignorance and
uncertainty since they may lead to disputes, strife and
animosity.* It is sound judgement that will decide which
forms of present day trades and activities should be prohibited
and which should be allowed and protected by law.
(3) The exigencies of the situation sometimes require that a
lawful act should be disallowed for preservance of public
interest. Similarly there are situations under which an
unlawful act has to be tolerated during a short period of
contingency. But of the two situations, allowing an unlawful
act is much more serious than banning a lawful act. The safe
and preferable way is to retain the essential illegality of the
act even when it is unavoidable to have recourse to it under
compulsion of circumstances. A government, for instance,
may be compelled to pay interest on credit purchases of
military hardware. Despite this compulsion, however, it
should not be disregarded that payment of interest is
unlawful and that serious thought should be given to
eliminate that situation as quickly as possible.
_____________________________
*
There may be institutions which are prohibited in the Sharia on account of their
harmful effects on individuals or societies but they now do not seem to be
harmful because of contemporary legal protection and games of chance and
practice of interest. If legal protection is withdrawn these institutions would give
rise to disputes and hostilities. Such practices cannot be accepted as lawful on
the ground of becoming “prevalent” or “safe”. The laws and rules to regulate
them and to make people accustomed to them should be withdrawn and the
institutions abolished even though these might be serving an apparently useful
purpose of mobilizing financial resources
5
(4)
We are attempting here to identify only a few of the vast
number of rules that the great jurists have laid down.
Interpretation and application of these rules require thorough
knowledge of Islamic law and jurisprudence. Emphasis on a
single rule ignoring the total perspective, its scope,
qualifications and limitations may often lead to a blunder.
Such is the case that Muslim economists are advised to ignore
these rules unless they are guided by reliable experts of
Sharia. Nevertheless, possibility of error in interpretation and
application by the author cannot be ruled out. The readers
who may like to apply them ought to discuss their problems
with scholars of authoritative competence on the subject
rather than building upon this discussion.
With the above precautions the rules that seem to be relevant
to economic policies and institutions may be briefly reproduced in
the following pages. The discussion mostly contains the examples
that early jurists have adduced. In some cases, however, examples
of contemporary situations have also been added.
(1)
Claim and Practice:
The Qur’an insists that Muslims should demonstrate
consistency in faith and practice and in words and deeds (2:208;
24:51; 30:30; 33:70; 41:30; 61:2,3). It is this basic requirement that
has led to the formation of a number of rules in the Sharia to
determine and judge the relationship between intention and deed
and between claims and acts.
The first legal maxim in this respect reads as following:
6
*
“The basis of every order is the
intention thereof a judgement based on an
order should follow the intention and
purpose of that order”(5).
The rule embodied in this maxim has been applied by early jurists
mostly on acts of rituals,(6) but it is just as equally applicable to
other spheres of activity. The liability of a person who finds
somebody’s goods lying in the way and picks it up will be
contingent upon the intention with which he has picked it up. If he
intends to hand it over to the owner and has made it known to
others he will be treated as a trustee and will not be required to
indemnify the owner in case the property is destroyed while in his
possession. But if he has kept it as owner he would be treated as a
usurper, Ghasib, and will be required to indemnify the owner in
case the property is destroyed.(7) The rule is also amenable to
performance of visibly different acts leading to the achievement of
the same object. Let us take an example from our own times.
Nationalization of financial institutions in some countries may be
the result of political ambitions while in some others it may aim at
correcting mismanagement and regulating credit; and yet in some
other countries it may be aimed at preventing foreign domination.
Nationalization in socialist countries has a deep-rooted
philosophical basis and underlying rationale quite different from
the one which prompts nationalization of key industries in nonsocialist countries. On the other hand, different actions by different
_____________________________
*
Compare with CR. Tyser’s Translation (The Mejelle, Reprint Lahore, 1967) “A
judgement of an object is in accordance with what the object of an act maybe.
That is to say, if a judgement shall be given about an act it will be in accordance
with what the object of an act may be.”
7
countries by way of granting rebates on export, making available
easy credit to exporters, fixation of import tariffs, laying down
licencing procedures and quota restrictions in connection with
imports etc., may aim at achieving a common cause of improving
the balance of payments position. The relationship between
intention and act could further be elaborated by the following
examples:
(A) A man makes an earning:
(1) for the satisfaction of his selfish urges.
(2)
for personal consumption and demonstration effects
(3)
for complying with the divine command to earn for the
sake of survival and spending on noble causes.
In all above cases the act is the same but the intention/object is
different.
(B) A man may grow and sell grapes to the consumer or to the
manufacturer of wine.
(C) A farmer may grow poppy for sale of seeds or to prepare
opium or drugs. In all these cases it is the intention that
determines the legality or illegality of the act of an individual.
The same is also true in the case of public policies. Inscription
of sacred words on coins may intend to symbolize a distinctive
feature or the inscription may be desecration of sacred words. The
former may be acceptable but the latter would be treated to be
offensive.(8)
In short it is the intention of the government in carrying out an
act or in making policy that matters.
8
The relationship between an act and intention could take the
following forms.
(1)
(2)
(3)
(4)
Acts/policies that are good in themselves and are
actuated by good objectives/intentions. For example, a
government might seek to promote public welfare
through Zakat and charity funds, donations, government
revenues and just and equitable taxes.
Acts and policies that are not good in themselves but are
resorted to for achieving commendable objectives. The
instances that immediately come to mind are winking
over smuggling in order to allow some people to earn
their livelihood or mobilising funds for charity by means
of games of chance and by floating interest-bearing
loans and bonds.
Acts and policies that are actuated by objectionable
intentions but lead to good results. An example is the
nationalization of an industry or of an industrial unit
with a view to harassing or black-mailing one’s political
opponents but the step might result in providing job
security to workers, reduction in the prices of products,
elimination of cut-throat competition and waste, and
standardisation of the products and avoidance of
incongruent growth of industry.
Objectionable intentions with objectionable policies.
The example is conniving at smuggling of wine into the
country for use by Muslims.*
_____________________________
*
Example of all the four forms can also be found in individual life. For example,
(a) earning may be taken as compliance of Allah’s command. (b) one may set up
a charitable organization with unlawful earning. (c) one may perform pilgrimage
with the object of smuggling merchandise. (d) one may engage in wager with a
view to bribe an officer.
9
It will be found that form No. 1 (good acts with good objectives) is
an ideal situation and has to be pursued. Form No. 4 is to be
rejected outright. In Nos. 2 and 3, the government has to make
amendment of policy in the former and of objective in the latter. It
should be noted that the announced phraseology of the policy
sometime betrays the implicit objectives. The government may
announce its policy of providing a house to each shelterless family
but in practice it could be inaffordable by a shelterless man. It is
actual acts and policies rather than proclamations that determine the
intention. This is so because of a sub-rule which governs
contractual obligations.
** “Contracts are to be understood in
relation to their intention and substance, not by
the words and phrases used’ so a bay bi ‘l-wafa’
will be held as a mortgage”.(9)
Suretyship (kafala) implies coextensive liability while transfer
of debt (hawala) implies discharge of the principal debtor. If a
contract of transfer of debt (hawala) is made with the condition to
hold the principal debtor liable in case the transferee fails to
discharge the debt, contract even though termed as a contract of
hawala will be treated as a contract of kafala, suretyship. Similar
will be the treatment of a contract of kafala in case the principal
debtor is discharged after contract of surety ship is signed.(10)
_____________________________
*
Tyser’s translation’s “In contracts, attention is given to the objectives and
meanings, and not to the words and form. Therefore, in the case of Bay Bil Vefa
(mortgage) it has the effect of Rehn (Pledge).
10
In case a government issues a licence to set up an industry, or
start a trade or import some merchandise it will not be lawful to sell
the licence because the object of the licence was the authorization
to set up an industry or trade or purchase of goods but not to make
the licence itself an article of trade.
Likewise if the banks declare their policy of financing their
clients on non-interest bases it would be necessary to do so and not
merely continue the same practice and seeking to rationalize it in
Islamic terms by changing the relevant nomenclature such as
calling it “buy-back” or “mark-up”.
It will not be permissible for the banks to practice Shirka and
Mudaraba in such a way as to ensure a fixed rate of return for the
banks while the liability of bearing loss or an uncertain amount of
remaining profit is transferred to the working partner.
To take another case, if the government allots plots of land to
individuals with the object of providing accommodation for
themselves the allotted will be violating the implicit terms of the
agreement by converting it into a commercial or industrial site or
by treating it as merchandise.
In case the government allots agricultural land to a farmer for
the purpose of cultivation, the land will have to be used for the
purpose for which it was allotted. This allotment will not confer
absolute right authorizing the allottee to claim the royalty of subsoil wealth if it has been found on exploration, nor will he be
allowed to convert it into a forest or a commercial or residential
area because these objectives are not covered under the terms of
allotment. Authorizing the possession and use would not be
stretched to imply a use which the owner does not intend to allow.
Leaving land unused deprives the allottee his right over land.
11
2.
Doubt and Certainty:
The basic rule that resolves the conflict between doubt and
certainty is contained in the principle:* “A belief amounting to
conviction cannot be caused to disappear by a doubt”.(11)
The rule is based on a Quranic verses: “Most of them follow
naught but conjecture. Assuredly, conjecture can by no means take
the place of truth” (10:37). The Prophet (peace by upon him) also
rejected entertaining doubts in the face of valid abolution
(wudu).(12) The rule thus discards the effect of doubt that disturbs
the original position. This provides guidance where discretion or
personal judgement and subjective evidence are relied upon; the
rule is of great significance in the event of controversy on rights
and obligations of contending parties in the absence of a proof on
either side. The benefit of doubt arising out of a controversial
position can never go to a person on whom the onus of proof lies;
thus the position of an indebted person even after his death will not
be affected by doubt as to a probable discharge of debt.
Similarly a claim as to the discharge of a debt will not be
rejected on the basis of presumption to the contrary. A contract
between two parties will be treated as binding even though there
may be reasons to doubt its Fait Du jour. The rule, if read with its
following subrules, provides a broader canvas of its application.
______________________________
*
Tyser’s translation: “With doubt certitude does not fade”
12
(a) *“As to incorporeal matters that do not prove
themselves, the basic principle (presumption) is that
they do not exist”: so that if between the active
partner and the financier there be a dispute as to
profit, the word of the active partner will be taken,
and the financier may lead evidence to prove the
actual profit”
In case a firm declares a particular amount of income during
the year this will have to be accepted by the Income Tax authorities
in the absence of an evidence to the contrary. Thus doubts of the
assessee’s statement cannot be unilaterally or arbitrarily sustained
unless the income statement filed by the assessee is proved to be
containing discrepancies. Business partners whether individual or
banks will also be required to accept it for purpose of sharing the
profit. The rejection of this declaration would require convincing
proof.
In the case of a dispute over a defective merchandise the
above sub-rule requires presumption of defect occurrence after sale
unless the buyer could prove prior presence thereof.
Similarly, a partner has no right to assume a minimum rate of
profit earned by his business partner and claim his share in that
profit as different from the amount stated to have been actually
earned by the partner. The sub-rule provides that in case the
_____________________________
*
Tyser’s translation: “As to attributes which may exist or not the presumption
which there is, is that they do not exist. For example, in a Mudaraba partnership,
if there is a dispute as to whether there be profit or not, because its non existence
is the presumption, the statement of the Mudarib is taken to be correct, the owner
of the partnership property has need of evidence that there was profit.
13
working partner declares a certain amount of profit no more will be
presumed unless the contrary is proved to be a fact
(b) The above sub-rule is further strengthened by
another sub-rule that *“no reliance (should be made)
on mere imagination”.(14)
(c) **Another rule is that of “freedom from
obligation: so that if one destroys the property of
another, and they differ as to the extent of damage,
the word of the person destroying may be taken, but
the owner of the property may bring evidence to
prove the excess.”(15)
Thus in case of loss in business a partner cannot allege wilful
neglect and require the latter to indemnify him for the loss, unless
he proves the contrary. Failing this proof the partner will not be
personally made liable to the loss nor to indemnify the other
partner. Any doubt affecting his position of freedom from liability
will be untenable. No arbitrary judgement of the contender would
be acceptable.
_____________________________
*
Tyser’s translation: “To imagination without foundation in fact, no weight is
given”.
**
Tyser’s translation: ”freedom from indebtedness is to be presumed. Therefore, if
someone wastes the property of another, if they have a difference as to the
amount, what the person, who committed the waste, says, is taken as right, and
the owner of the property has need of proving the excess of his claim”.
14
3.
Eliminating Detriment
*
“No wrong, no wrong-doing.”(16)
This most important rule of the Sharia is based on a Hadith
with similar wording.(17) This guiding rule, read with its sub-rule,
provides a guideline to
**”wrong is to be undone”,(18)
regulate the entire economic and financial system in such a way
that prohibits harm imposition and discourages retaliation. This
basic rule is treated as a pillar of Islamic law. The rule forms the
basis of the laws of option, inhibition, return of defective
merchandise, pre-emption, requittal, Hudud,(19) compensation and
indemnity, etc.(20) This also allows individuals to act unilaterally to
protect themselves or others from harm. It is, therefore, necessary
that an Islamic state should legislate and manage in such a way that
would plug the sources of causing harm or damage. It is on this
basis that the government has a right to blacklist those traders who
indulge in illegal and anti-social activities such as smuggling and
adulteration.
It can also take action against those influencial persons who
provide support or give protection to unlawful practices or to
miscreants.
It is on this basis that a landlord is not allowed to eject the
tenant from the cropped land even on the expiry of the period of the
contract of tenancy so that the cultivator is protected from the loss
of his crop. The landlord is bound to extend the period of tenancy
against payment of standard rent till the crop sown by the tenant is
harvested.
_____________________________
*
**
Tyser’s translation: “Damage and retaliation by damage is not allowed.”
Tyser’s translation: “Damage is put on end to.”
15
In case the buyer of perishable goods absents himself without
taking possession of the purchased goods the seller, in order to
protect himself and the buyer from loss, has a right to unilaterally
revoke the contract of sale and sell the goods to some other party
lest the commodity should perish.
The application of the rule has the following prerequisites) :
(i)
* “Let the ancient rest on its age.(21)
Thus it is not permissible to close an age-old thoroughfare or
to prevent the livestock from grazing in jungle or public pasture
which has been in use since a long time. These rights have to be
guaranteed unless their exercise is harmful to general interest. This
is so because of the operation of another rule that
** “A wrong is a wrong even though it be ancient”. (22)
Thus if an age-old canal is causing water logging and salinity
it should not be allowed -to flow simply on account of previously
held rights.
If a well has become dangerous to the neighbouring
population it will be levelled up even if it is very old.. The
government may ban cycle rickshaws in case it is found to
seriously impair the health of the rickshaw-pullers or in case it has
become a nuisance to traffic. The government may also ban fishing
on boats in high seas on account of high risk in case motor-operated
boats are available. It can also order for shifting age-old noxious
workshops and factories from congested areas. Thus ancientness
_____________________________
*
**
Tyser’s translation: “What is from time immemorial will be kept in its ancient
state.”
Tyser’s translation: “Damage does not become of time immemorial.”
16
would not be an excuse to continue a thing that has become
hazardous.
(ii) *“Unlawful things are to be prevented irrespective of
benefit”.(23)
There may be situations in which an act might have certain
benefits while it produces corruption and inequity. In such a case
the Sharia would ban that act despite the benefits that it. might
apparently yield.
Trading in unlawful items and earning with unlawful ways
might provide employment to a large number of persons and bring
substantial revenues to the government. Nonetheless the unlawful
items in trading must be eliminated since the removal of comiption
has priority over acquisition of benefits - economic, social or
otherwise.
Gambling or wager might be an effective source of collecting
funds for philanthropic objectives; nevertheless, they have to be
avoided since the acquisition of benefits is less important from the
viewpoint of the Sharia than the avoidance of corruption.
There may be situations in which a trade, technique or a
policy is not unlawful but involves both benefit and harm, such
situations are governed by the following subsidiary rules:
______________________
Tyser’s translation: “The repelling of mischief (Mafasid) is preferred to the acquisition
of benefits”
17
(a)
‘injury is to be resisted to the extent possible.(24)
This rule provides us with a guideline to adjust our policies in
those situations which, although lawful, are fraught with risk and
harm.
Automation would, in the short run, lead to unemployment.
Industrialization may lead to pollution of atmosphere and
overcrowding. Public expenditure on economic development may
have an inflationary effect.
These risks or damages would not suggest that the efforts
towards economic development should be discontinued. What the
rule amounts to is that such effort should be continued with a
serious effort to minimise the adverse effects as far as possible. The
following further rules present the practical guidelines:
(b)
**”A wrong is not avoided by another of the same kind”.(25)
The law of sustenance binds a person to provide to kinsmen if
they are struck by hunger and want. But enforcing this requirement
on a pauper who possesses a single meal would merely transfer the
harm from one person to another. This is repelling a harm with a
similar harm and is not recommended.
_________________________
*
Tyser’s translation: “Damage (Darar) is repelled as far as possible”
**
Tyser’s translation: “A Damage (Darar) is not put an end to by its like”
18
In case a buyer gets a faulty article he is given the option to
return the goods. But if the purchased article has developed similar
fault while in possession of the purchaser he will lose his option to
return the goods because, in order to protect himself from harm, he
will also be harming the seller. This would amount to repelling a
harm by causing a similar harm.
The rule also lays down an important policy criterion for the
government.
It is not lawful for any government to rob a person or a group
in order to provide benefit to some other person or a group.
Thus it may not provide employment to some by denying it to
others.
Likewise it may not irrigate some farms by drying up similar
other farm.
In short, it is not allowed to use public property for the benefit
of some at the cost of others’ benefit.
(c)
*
A greater injury may be avoided (enduring) a lesser
injury.(26)
The principle is that one may not ordinarily compel a well-todo person in order to distribute his income among the have-nots.
But in situations where relatives are needy the government has a
right to compel him under the law of sustenance to bear their
expenses, as well, because the harm that is caused by the poverty of
the poor relative is more serious than the harm caused by the
________________________
Tyser’s translation: “Severe Damage (Darar) is made to disappear by a lighter
*
damage”.
19
compulsory distribution of a portion of well-to-do’s wealth among
his near relatives.
Similarly, the government may compel a resourceful debtor to
redeem the debt on stipulated time.
The rule also provides some important choices in order to
endure a minor harm to counteract a major harm. For example, in
case a customer loses his coin in a slot, his coin may be allowed to
go waste rather than to dismantle the machine which has much
greater value than the coin. But in case a very expensive piece of
jewellery is lost in a less expensive washing machine of a laundry
its recovery, then, requires damage to the machine; the same will be
effected to recover the piece of jewellery that is more expensive
than the machine.(27)
In all such cases where the choice is between two harmful
alternatives the one fraught with less harm may be chosen.
(d)
The rule in the case of conflict between a particular harm and
a general harm is that *“To avoid public injury, a private
injury may be suffered”.(28)
The Sharia is inclined to allow free market operation and,
under normal conditions, is disinclined to price-regulation. But in
case traders manipulate the market and reap exorbitant profits in a
manner that the interest of the consumers, i.e., the general public, is
seriously jeopardised the government action is justified in
regulating prices or profits to protect the interests of the consumers.
_________________________
*
Tyser’s translation: “To repel a. public damage (Zarar) a private damage is
preferred.
20
This is so because protecting public interests is more important than
securing traders’ interests. By doing so the government will be
preventing the general harm by tolerating a particular harm.
It is this rule of lesser evil that guides a choice among
alternative uses of economic resources. The question of theory
needs to be decided by competent experts who should be guided by
objective rather than subjective factors in their judgement.
It is this rule which guides inquiry into population planning,
nationalization, price control and rationing, ceiling on using land
for fanning, interlocking of directors of business firms and a large
number of similar economic issues and policies. In addition, there
is another rule which contains the same spirit but is laid down in
different words. It reads as * “The lesser of two evils is to be
chosen”.(29)
Thus fiscal and monetary restrictions on incomes and
borrowing are undesirable, but inflationary pressure caused by
monetary expansion is all the more undesirable.
Ordinarily, it is not justifiable for the government to compel
someone to sell, but it is all the more unjustifiable for the seller to
hoard foodgrain.
________________________
*
Tyser’s translation: “The smaller of two harms (sherr) is
chosen”.
21
Price controls are generally undesirable but exploitation of the
general public by making excessive profits on necessities like
bread, milk, and medicines is much more undesirable.
In the Prophet’s (peace be upon him) time middlemen used to
purchase articles from suppliers before they reach the townsmarket. This had adversely influenced free market operation and
proved to be detrimental to the interest of bonafide sellers and
consumers. With a view to protecting the interest of both groups the
holy Prophet (peace be upon him) is reported to have disallowed
the middlemen to bargain with visiting village suppliers before they
reached the market.(30)
Thus the rule of choosing lesser evil gives the government
wide powers to impose restrictions and controls on traders and
members of other professions, and to regulate ownership and
consumption.
In all the above cases the occurence of harm is real and
calculable. There may be harm which has imaginary existence and
has remote probability of occurrence. Such is not to be considered
as a valid ground of policy choice as the rule is that there is * “no
reliance on mere imagination”(31)
Hence production of grape or barley may not be banned
simply on the presumption that it may lead traders to manufacture
wine or beer.
The sale of molasses may not be banned for fear of its misuse
by some manufacturers.(32)
________________________
*
Tyser’s translation: “To imagination without foundation in fact, no weight is
given”.
22
4.
THE RULES OF RELAXATION:
The Quranic policy is:
Allah desireth for you ease; He desireth not hardship for you.
(2:185)
We hath chosen you and hath not laid upon you in religion
any hardship. (22:78)
The Prophet (peace be upon him) is also reported to have
insisted on the same point on a number of occasions.(33) This is one
of the most misinterpreted and most misused rules for want of
clarification. Hardship for physical persons as hinted in the Quran
has been defined by jurists as a situation in which acting upon an
injuction of the Sharia causes loss of life or limb or leads one to
performance of a prohibited act. Islam insists that one should earn
by lawful means alone and should only consume what is
permissible. These restrictions may sometime lead a person to die
of starvation for want of a lawful earning or availability of a
permissible esculent. When a person is - placed in such dire
circumstances the Islamic law permits the use of an unlawful item.
Muslims are prohibited from shedding the blood of their
brethren. Thus if an aggressor on dar-al-Islam* deploys Muslim
soldiers on the front line. Islamic law considers it permissible to
disregard the presence of Muslims in the front line of the enemy in
repelling the attack even though that would entail the killing of
innocent Muslims which, as a rule, is absolutely prohibited. In both
cases the primary objective of the Sharia is the protection of
Muslims and the defence of dar-al-Islam. Thus the obstacle that
_________________________
*
Dar-a/-Is/am is a territory where Islam is the supreme law, enforced by Muslim
rule.
23
confronts the achievement of this primary objective will have to be
overcome by relaxing the two conditions.
There are cases in which the Quran and/or the Hadith have
outlined the nature of hardship which forms the basis/cause of
relief. In such cases no other hardship is taken into account for
claiming similar or further relief.(34) There are, however, situations
where the Quran and the Hadith have not laid down the hardship
which calls for relief or relaxation while acting upon some
injunctions. It is here that experts of high calibre may determine
whether this really deserves relief. An important point that needs to
be emphasised here is that the object of providing relief in case of a
hardship consists of facilitating a more efficient achievement of the
objective of the Sharia. This provision of relief is motivated by the
spirit of compliance rather than escapance.
Similarly, there are situations in which the Quran or the
Hadith grant a relaxation in principle. In such cases the relief is
restricted to those laid down in the text and only to that extent, but
no further.
It is prohibited to sell the fruits on the tree before they come
to maturity.
It is also prohibited to sell foodgrain for the same quantity and
specie of foodgrain for delivery in future. Moreover, the quantity
sold should be determinable and not conjectura1.(35) The Hadith
relaxes this principle to the extent of 5 wasqs in the case of date and
grape for those cultivators who need them but they have to wait
long for their own produce. Those cultivators are allowed to sell
conjecturally a quantity of their expected fresh produce for a
quantity of dry produce available promptly.(36) The relaxation so
granted cannot be further expanded in items, quantity or in
situation.
24
Similarly a contract to sell a commodity which one does not
possess at the time of making the sale contract is not lawful.(37)
Bay’ Sa/am which technically means prompt payment for a
commodity that the seller does not possess is permissible in the
case of producers who need finance for inputs. If finance is not
forthcoming at the time of sowing, production will cease which will
be harmful for the entire community. To ensure productive .activity
is not hampered the cultivator is allowed to sell his expected
produce against advance .payment. In this particular case, however,
the Prophet (peace be upon him) made a relaxation in the law of
sale of goods. Thus the relaxation in the principle of “sale before
possession” will remain confined to Bay’ Sa/am only and cannot be
used in other sale transactions.
In contracts of hire and commission one party agrees to pay
for a benefit (hire) or a part of the proceeds (commission) which
does not exist at the time of making the contract. In principle this
absence of the consideration should have nullified the contract but
it was the rule of universal need that such contracts were permitted.
While elaborating this application, early scholars have cited a
number of examples applicable to economic life:
Hardship may be faced because of compulsion, distress and
universal affliction (umum balwa), physical handicap, ignorance,
forgetfulness, sickness and journey.(38) The relaxations that are
granted in many of these situations take a variety of forms, for
example:
(a)
Relaxation (Suqut). The Quran prescribes eight different
heads of expenditure of Zakat proceeds (9:60). In view of
practical difficulties that an Islamic state would face in
allocating Zakat proceeds among all the heads together it has
been made optional to set priorities and neglect some of the
heads.
25
It is because of this factor or hardship that Hanafites absolve
the sahib mal (owner of wealth) from paying Zakat if his
Zakatable property is destroyed.
The doctors who are in favour of levying Zakat on all the
items of land-produce exempt vegetable produce from the
levy. The probable reason is the hardship in their prompt
distribution among the beneficiaries in a wholesome condition
because they are perishable and cannot generally be stored.
Moreover, there is also hardship in managing daily collection
of Zakat on a large number of items of vegetables which are
picked up every day.
A contract of sale must precisely specify the quality and the
nature of merchandise on sale; failing, the contract would be
treated as void. Yet, there are certain commodities whose
quality cannot be ensured without damaging them.
Pomegranate or uncooked egg, for example, cannot normally
be sold without skin. Removing the skin would be a damaging
exposure. It is in such cases that the rule of precisely defining
the content of merchandise will be relaxed.(39)
(b)
Decrease (tanqis). The Quran ordains Muslims to fulfil their
promises / contracts (5:1; 17:34; 23:8). This does not accept
nullification even though the conditions laid down become
impracticable or injurious to either or both the parties. It is in
view of this hardship that a large number of commercial
contracts have been made revokable (aqd qhayr lazim).
The rate of levy of Sadaqa on land produce is 10% (Ushr). In
view of hardship that a farmer has to face in irrigating his land
as compared with rain-irrigated lands, the Prophet (peace be
upon him) has reduced the rate of levy on irrigated produce to
5%.
26
(c)
Advancing (taqdim). Sadaqa or Zakat is due on the
completion of a full year or on harvest. In case the
government is in desperate need for Zakat funds it may
request the payer to pay the same in advance of its becoming
due. Advance payment of price in the case of bay salam and
bay istisna* are also examples with the object of meeting the
need of the cultivator or craftsman.
(d)
Postponement (Ta’khir). A debtor is morally bound to settle
his debt on or before the stipulated date. Default in timely
discharge is not only sinful but also exposes the debtor to
legal action. But there may be situations in which he is unable
to pay the loan. This will require for deferment to a future
date lest he should commit a sin by refusing to pay the loan.
(e)
Permission (tarkhis). The Quran prohibits consumption of
wine, pork, and carrion. But in case water is not available one
is allowed to use wine for swallowing down if he fears death
from choke-throat. The reason is protection of one’s life from
sure death.
Similarly a man who is dying of starvation for want of
permissible food is permitted to use carrion or pork in a quantity
required just to save his life.
It should be noted that permission to act on this basis is
restricted by time and extent in the sense that this permission is
purely temporary and the quantity consumed or act rendered should
be the barest minimum sufficient to save one from death or
irreparable damage. This qualification is applicable in the case of
_________________________
*
Bay’ salam is deferred sale of unpossessed goods on advance payment. Bay’
istisna is a contract to sell an article after manufacture.
27
permission for all unlawful items and acts. The restriction is
explained by the Quran in the following words:
“But he who is driven by necessity, neither craving nor
transgressing, it is no sin for him. Lo; Allah is Forgiving,
Merciful. (2: 173)”
It will be found from the above discussion that all these
relaxations are amenable to the situation of necessity. But any
necessity cannot qualify for relaxation. This requires defining the
Sharia concept of necessity which plays a very important role in
elaborating the main rule. The concept not only forms the basis of
many subsidiary rules but also lays down the limitations within
which the main rule has to operate. The rule “necessities (addarurat) justify that which may be unlawful”(40) is the most
important principle that provides us with guideline to bypass the
impasse in practising upon the principles of the Sharia. The
scholars, while defining necessity, have distinguished between
darura (compulsive necessity), and haja (need). For them darura is
an indispensable necessity which, if not met, may cause severe
hardship resulting in loss of life -- known or suspected. Haja on the
other hand, is a need which when unsatisfied, does not cause
hardship. It affects convenience and efficient performance of an
act.*
_________________________
*
Readers are warned not to compare this classification with contemporary
economic classification of wants. The modern classification of wants into
necessities, comforts and luxuries is only apparently comparable with the
Muslim jurists classification of darura, haja and tashiniyya meaning thereby
necessity, need, and refinement (Shatibi, 2, B et seq). It will however, be found
that the contemporary classification in economic literature is relevant to human
wants and points to the standard of consumption while the Islamic legal
classification of darura, haja and tahsiniyya refers to the standard of
performance as required in the Sharia. According to fuqaha’ these refer to
_____________
(Contd……..)
28
In addition to the compulsive character of necessity jurists
have laid down certain conditions which should be met before
relaxation is sought. These conditions include:(41)
(i)
The necessity should be in esse but not speculative or
imaginative.
(ii) No lawful alternative should be available to the suffering
person than the one which calls for relaxation.
(iii) The solution should not infringe the inviolable rights of the
people leading to homicide, apostasy, usurpation of property
(ghasb) or indulgence in unlawful sex.(42)
(iv) There should be a very strong justification such as the
protection of life or limb, for relaxation to the extent of
consuming an unlawful thing or performing an unlawful act.
The relaxation is made only to the barest extent that may avert
the threat to life or limb.
(v)
In view of experts it should be a genuine solution and the only
one available. For example, in the case of medical treatment,
only an expert physician is competent to pronounce whether
liquor alone is the available remedy for disease and that
nothing else would be effective .
_________________________
(from last page)
rituals, habits transactions and criminal offences. Human behaviour that comes
under the category of darura guarantees protections of religious life, intellect,
posterity and wealth. Haja on the other, ensures facility and ease, while
tahsiniyya introduces refinement in the lives of men. The two concepts are thus
poles apart from each other. It will be interesting to point out that some Muslim
jurists (Al-Suyuti, 85) have extended the classification to five in place of three:
darura, haja, manfaa, zeena and fudul, meaning thereby compulsive necessity,
ordinary necessity, usefulness, adornment and redundance, respectively.
29
(vi) In addition to the above, a very important condition of
permitting an act under constraint or compulsion is that
*
“necessity does not destroy the right of others: for example
one who is compelled to eat the food of another is still liable
to pay the cost”
A government may compulsorily take over the property of
other persons if it is necessary for achievement of important social
and national objectives but it will be required to pay fair
compensation.
It is under the above conditions that relaxation is allowed in
the main principle. In case, however, the hardship is not so extreme
as to endanger life or limb it will no longer be termed darura. It
may be termed as haja which, if faced casually or by individuals,
will not justify any relaxation. However, if this haja has become
general or universal and the entire society or a group of the society
is confronted with hardship, this will call for relaxation.(45) It is
because of this consideration that the Prophet (peace be upon him)
has allowed such as hire, bay salam and istisna even though they
run counter to the rule of the sale of non existent commodity. The
object of relaxation is to overcome the impediments in the smooth
economic functioning of the society. Thus the relaxations that can
be made for the society on the ground of general need cannot be
allowed in the case of individual needs. As an example the general
principle is that a person is allowed to use only what he owns.
______________________________
*
Tyser’s translation: “Constraint (iztirar) does not destroy the right of another.
Consequently, if a man when he is hungry eats someone’s bread, the payment of
its value is necessary”.
30
In case the entire society is made to rigidly follow this principle
economic activities would be confined to those actuated by purely
selfish motives and would become altogether bereft of benevolence
and mutual cooperation. No entrepreneur would like to offer his
skill to the saver (mudaraba contract). No businessman would join
the other to carry on joint business (shirka contract), nobody would
borrow for his personal and business needs, nobody would sell on
deferred delivery basis (bay salam) or take an advance for
manufacturing an article (istisna) or rendering a service (ujra). An
individual can do without all such contracts but if the entire society
is made to refrain from such contracts it will drastically curtail
production, consumption and investment and ultimately may ruin
the economic structure of the Islamic state and might undermine the
economic well-being of the people. The Sharia, in order to remove.
such impediments, has legalized a number of contracts which are
likely to expand the scope of economic activity and promote
economic cooperation; Thus in certain cases, what is an ordinary
need, haja, of the individuals becomes an indispensable need,
darura, of the society.
Some scholars have classified the degrees of permission
(tarkhis) taking into account the urgency of the situation and the
benefit (maslaha) which the Sharia intends to achieve. According
to them on some occasions the permission to do an unlawful act
might become obligatory while at some other time it might only be
recommended. While in some other situations it would simply be
treated as optional. (46) These three degrees can be made equally
applicable to the individual acts as well as to government policies.
Applying this classification to individuals it becomes obligatory if
human life is at stake. For example, if a person is dying of chokethroat but has nothing to swallow except with wine, he is obligated
to use it and save his life.
31
The example of a recommended permission is transfer of the
liability of debt (hawala) to a non-borrower. Optional permission
lies in allowing the patient of scabies to wear silken attire which
otherwise is prohibited for men.
A trustee of an orphan’s or an insane’s property, compelled by
necessity, has the option to utilize the property to the extent of his
service to the owner.
Relaxation in the case of society or government becomes
obligatory when the community feels that it would suffer an
irreparable loss. Payment of interest is not permissible for any
Muslim including the Islamic State. But in case it is unable to make
prompt payment for military hardware to prepare itself for the
defence of dar-al-Islam it must make credit purchase even though
the credit is available only at interest.
The same rule will apply in case the country is witnessing a
famine and is threatened by the loss of a large number of lives.
Ordinarily, the government is not allowed to compel traders to sell
their goods or fix their prices. However, in the event of scarcity of
bare necessities, their hoarding and mal distribution justifies the
government intervention to control supply and price of the
commodities concerned.
Relaxation becomes recommended when the original
injunction implies some procedural difficulties. The element of
gharar makes a contract/transaction void. But this does affect the
enforceability of an unilateral offer of gratuitous payment. It would
be advisable for government to announce the award of suitable
prizes on good performance by its citizens.
32
As a general rule a trustee is not liable for the loss of trust
property. But in the case of general misbehaviour of the trustee it
may be recommended to make him liable for the loss of property
inflicted on account of trustee's negligence.
Normally the government has no right to exact money from
the people even though as a compulsory loan. But in order to
relieve inflationary pressure and restrict the expansion of money it
will be desirable to bind the wealthy individuals and financial
institutions to compulsorily subscribe to contractionary loans/bonds
floated by the government.
Wages are to be determined by contracts freely made between
the concerned parties. But in case the government finds that one of
the two contracting parties is, due to superior resources or
bargaining power, inclined to exploit the other party by dictating
unfair terms, it is desirable for it to fix minimum / normal wages.
Similarly, there may be situations in which it would be
advisable for the government to freeze wages and salaries.
There are some situation in which relaxation is simply
optional but not compulsory or desirable. It would be optional for
the government, for instance, to fix prices of certain commodities
and rents of some categories of premises at some places and to
impose credit ceilings for financial institutions.
It may also fix the crops that should be grown in some regions
and may put a ban on the manufacture of certain items provided
that it finds those actions to be in the interest of some particular
class or community rather than the community as a whole.
33
It should be noted carefully that there is a basic difference
between the extent of relaxation on account of darura and on
account of haja. Similarly, there is a difference between relaxation
for individuals and for society. Hardship falling in the category of
darura facing individuals involves loss of life or limb, and hence
rightly calls for relaxation in basic principles of the Quran or
Sunna. On the other hand, hardship faced by society which is not of
the class of darura but is treated as haja is less severe and only
affects smooth and efficient performance of social institutions. It
does not claim relaxation in subsidiary rules that are based on
analogical reasoning of the fuqaha. The former relaxation is purely
temporary and ends with relief in hardship. The later relaxation
continues for as long as it is found beneficial to the society.(47)
While the rule* “necessities justify that which may be
unlawful”(48)
broadens the scope of activity there are counter-rules to prevent the
misuse of the permissibility and relaxation. One such counter-rule,
as laid down by some jurists, reads as ** ''permission when exceeds
will be narrowed down".(49)
_________________________
*
Tyser's translation: “Necessities (darurat) make forbidden things canonically
harmless”.
**
Tyser's translation: “When a matter is narrow it becomes wide, that is to say, so
far as hardship (Meshaqqat) is experienced in a business, latitude and indulgence
are shown.
34
This rule, though not discussed generally, has in fact been in
practice since the earliest days of Islam* and provides us with
significant policy guidelines.
According to most of the fuqaha an indebted person is exempt
from Zakat on his non apparent wealth (mal batin) to the extent of
his liability of debt. Presently this exemption could be misused by a
large number of wealthy businessmen and industrialists. In Pakistan
the use of the above quoted counter-rule led the Zakat and Ushr
ordinance 1980 to discriminate between different categories of debt
and narrowed down the legal exemption.
The holy Prophet (peace be upon him) permitted betting on
horses with the object of encouraging horse rearing which was the
most important riding animal during Jihad. As horses are of lesser
importance in modem warfare, the entire sport of racing involving
stakes needs to be reviewed in the light of the counter-rule.
Indiscriminate sale of birth control devices leading to their
misuse also recommends for application of the counter-rule.
The use of platinum jewellery by men which is much more
expensive than the prohibited gold jewellery and of much more
expensive dress than silken which is not permitted for men need to
be reviewed on the same ground.
__________________________
*
It was because of this consideration that Caliph 'Umar at one stage prohibited
Muslims to acquire estates in the conquerred territories. On this very basis he
levied a tax on horses, which were reportedly exempted by the holy Prophet,
from the levy of Zakar. A trustee is not liable to the owner for loss of deposited
goods, incurred without his negligence. But in case the rule was misused, the
washermen, dyers, and goldsmiths were made liable to indemnify the owner of
the loss of cloth and gold in their trust.
35
Similar is the case of practising a large number of financing
techniques adopted by contemporary interest-free banks.
Techniques of joint trading could be expanded into a number of
interest-free modes of financing by banks. But in case these modes
are made into a device for ensuring a fixed return, it will be
necessary to impose restrictions to prevent their misuse.
The holy Prophet (peace be upon him) has allowed the right
of tilling the unclaimed barren land to the one who reclaims it.(50)
The point to see is if the general licence to occupy in this way
would not be misused by the resourceful persons.
The situations where the relaxations of the Sharia seem to
have been surpassed to an embarassing extent are many and varied
and need to be carefully examined by the jurists. Should the
customary withdrawal of a daughter from her right to inheritance in
landed property be taken on its face value?
Should an orphan be deprived of all rights in the inheritance
of a grand-father?
Should mineral wealth hidden deep beneath the land be
treated as a right of the person who possesses that land for
cultivation?
Should state land be unconditionally leased out to individuals
for very long periods?
Should all the revocable contracts and irrevocable ones be
retained as they are treated fiqh literature?
36
Should “spoils of war” now left by vanquished enemy in the
battle field be distributed among fighters?*
These and such issues need to be resolved in the light of the
rule “'permission when exceeds will be narrowed down”. The
second counter-rule to relaxation lies in the maxim.** “The extent
of necessities limits action thereunder”.
This maxim aims at restricting the scope of relaxation only to
the extent and nature of necessity. One is not allowed to extend this
relaxation to cover situations that are not really necessary. In
consumption, for example, as stated above a person may be allowed
to save his life by eating an unclean stuff, but this permission is
restricted to the extent of eating a quantity that may save him from
death but not eating to his fill.
Everybody has a right to dispose of his property in any lawful
manner he chooses. As a general principle he cannot be deprived of
this right. But under the rule of necessity government may freeze or
_________________________
*
In earliest Islamic period a large part of spoils of war was distributed among the
soldiers who offered their services voluntarily and relied on their own weapons,
training, riding animals and daily provision. The booty also generally comprised
weapons, riding animals and articles of consumption in addition to jewellery and
precious metals. Later on change in the voluntary character of the Muslim army
did not bring about a change in our fiqh literature, in the fighters entitlement to
booty except that land was retained for the state. The nature of fighters,
weapons, warfare, and booty has now absolutely changed. This calls for a
recognition of a change in the policy towards distribution of booty which,
practically, is being adopted everywhere.
**
Tyser's translation: Necessities (darurat) are estimated according to their
quantity". (The Mejelle: Art 22).
37
seize the properties of a defaulter who fails to discharge
government claims or personal or institutional debts, in order to
adjust the claims with the defaulter’s frozen accounts or seized
properties. But the maxim that “the extent of necessities limits
action thereunder” binds a government to attach only as much
property as is sufficient to adjust the claims, not more than that. It
will be offensive to deprive the defaulter of all his fixed and
transportable property or to stop him from exercising his normal
business operations that exceed the extent of claims.
Another counter-rule that prevents the misuse of the
permissibility or relaxation provides that *”What is lawful for a
reason becomes invalid when such reason disappears”(51)
The maxim is equally applicable to individuals as to society
and government. Individuals may, sometimes, be compelled to
carry on their living through a job that is not religiously clean.
When they get an opportunity to join a clean profession it will not
remain permissible for them to continue their unclean job.
There was a time when, in some regions scrupulous lenders
were not willing to advance loans to traders unless they had an axe
to grind. It was on account of this excuse that “Ulama” in those
regions legalised bay` bi’! wafa’ (buy-back arrangement) so that
the traders had not to suffer due to lack of funds. The situation has
now changed. The largest and the most organised source of finance
are banks which mobilise and allocate most of national savings.
Credit policy is controlled and monitored by central bank keeping
_________________________
*
Tyser's translation: “A thing permitted on account of an excuse (Uzr) becomes
unlawful on the cessation of the excuse”.
38
in view the overall public interest. This has discarded the refusal of
scrupulous money lender for not financing the needy producer or
trader. The central bank may impose controls to ensure supply of
funds to all the priority sectors or neglected sectors on terms and
conditions that are in consonance with the Islamic principles of
finance, on the one hand, and attractive to both the parties on the
other. Thus the legality of bay ‘bi’l-wafa will no longer remain
permissible.
On higher level a government has the authority to levy tax for
meeting budgetary requirements for public welfare projects only
when it is short of public resources. In cases such as compensation
for earthquake victims, the justification would cease after
rehabilitation work is completed. Special purpose taxes thus need to
be spent exclusively for those purposes. Any infringement would
amount to a breach of trust. As soon as the purpose is achieved, the
permissibility of the tax would cease.
5.
GIVE AND TAKE:
The rule that governs giving and taking is governed by the
principle: *“What is haram to take is haram to give”.
As a corollary of the above, another rule is that **“What is
haram to do is haram to demand”.(52)
_________________________
*
**
Tyser's translation: “When the receiving of a thing is forbidden the giving of it is
also forbidden.
Tyser's translation: “When it is forbidden that a thing should be done, it is also
forbidden that it should be asked for.”
39
The rule alongwith its corollary is relevant not only for
financial transactions like taking of interest, and illegal
gratifications etc., but also for non-financial transactions like
adopting professions that are rejected in the Sharia. The import of
these rules is clear for individuals but requires some elaboration in
regard to actions and policies of the government. It may be argued
that the injunctions of the Sharia are addressed to individuals and
have no effect on corporate bodies and government. Thus what is
obligatory for the Muslim individuals is not binding on Muslim
governments. For example, Muslims are required to offer prayers,
pay Zakat and perform hajj but the government as such is not
supposed to do nor can it do all that. Similarly it is the individuals
who are required to refrain from engaging in interest but not the
government or other legal persons. But the argument can be
rejected on ground of the following Quranic verses:
Those who, if We give them power in the land, establish
worship and pay Zakat and enjoin virtue (maruj) and forbid
iniquity (munkar) (22:41).
All hath promised such of you as believe and do good works
that He will surely make them to succeed (the present rulers)
in the earth even as He caused those who were before them to
succeed (others); and that He will surely establish for them
their religion which He hath approved for them, and will give
them, in exchange safety after fear. They serve Me. They
ascribe nothing as partner unto Me. Those who disbelieve
henceforth, they are the miscreants. Establish worship and pay
Zakat and obey the messenger that haply ye may find mercy.
(24:55, 56).
40
These verses not only point out the obligatory functions of an
Islamic state but also emphasise the importance of making religious
norms and values prevail in the human life. An Islamic
government, for obvious reasons, may not be able to perform the
rites of worship. It is, however, under the obligation to establish
institutions that are conducive to their performance by all those
Muslims who are capable of so' doing. Moreover, its duty is to
ensure that virtue, maruf is enjoined and vice, munkar is being
forbidden (Q. 22:41). Hence the government may not legalize for
itself an act which it prevents under its jurisdiction. This is what has
been laid down in the above quoted rules. The Quran and the
Hadith disapprove incomes arising out of interest, illegal
gratification, or obscene professions, and of all those acts that are
prohibited.(53) As a consequence, it is obligatory for the Islamic
state to ban the sources of such incomes. In case the government
bans these incomes and professions for individuals, but exempts
itself from doing so, the ultimate benefit and effect of the same will
directly and indirectly pass on to those individuals because the
government expends its incomes on their welfare. This will be in
addition to creating the undesirable moral, spiritual and social
effects that such practices are likely to bring about.
It needs to be pointed out that the above mentioned rules lay
down the practical scope of the unlawful items and acts. In case of
lawful acts, however, a distinction has to be made between the
rights and powers of the government (Imam) and those of
individuals. It is the prerogative of the Islamic government only to
levy and collect taxes but not of individuals. The (Imam) alone can
declare Jihad against an enemy but not an individual. Hudud can be
enforced only by an Islamic government, not by individuals.
41
6.
THE RULES ABOUT BENEFIT VERSUS LIABILITY:
The relationship between the right to enjoy benefit from a
property and the liability to incur loss due to proprietorship is
governed by a number of rules that carry great significance in
transactions of commercial nature. In cases where commercial
nature is not involved the plain rule is that * “What is permissible
in law cannot be a cause for liability”.(54)
Thus if a person digs a well in his farm and somebody's
animal falls in it and is drowned the owner of the well will not be
liable to compensate for the loss because he is allowed to get a well
dug at his farm.
Similarly it is presumed an Islamic government provides the
best available transport facility to its citizens, to construct dams for
irrigation and electricity, to devalue or revalue its currency in the
national interest, and to carry on development projects for the
benefit of its people. Now in case somebody is run over by a train
due to his own fault or is killed in an air-crash, or is carried away
alongwith his property by floods caused by breaches in the dam, the
government will not be legally liable to compensate for the loss.
If a government expenditure on development creats
inflationary pressures the government would not be bound to
compensate the buyers for a fall in value of their money caused by
this action.
Another rule dealing with non-commercial transactions is
governed by the Prophet's (peace be upon him) saying that:
____________________________
*
Tyser's translation: “Pennission by Cannon Law excludes the liability to make
compensations”.
42
“There is no indemnity on usufructuary who does not breach
(the terms) nor on depositary who does not breach (the terms)”.(55)
Liability to indemnify the aggrieved party arises in a large
number of non-commercial transactions like usurpation, slander,
crime, found property, agency, marriage, sustenance, etc., under
conditions of infringement of one's rights an~ negligence of
duties and responsibilities. In cases, however, where
commercial considerations are involved the rule provides that *
“Damage and benefit go together. That is to say that a person who
obtains the benefit of a thing, takes upon himself also the loss from
it”.(56)
This general rule is based on the Prophet’s (peace be upon
him) saying:
“Al-kharaj bi’d-daman"(57) (“Revenue goes with liability”).**
Another legal maxim that also has the same bearing is:
__________________________
*
Tyser's translation: “The detriment is as a return for the benefit. That is to say,
the person who obtains the benefit of a thing takes upon himself also the loss
from it.”
**
Tyser’s translation: “The benefit of a thing is a return for the liability for loss
from that thing”.
43
*
“The blessings of a thing are in proportion to the evils thereof
and vice versa”.(58)
Thus when the thing used is destroyed while in the possession
of the user compensation for use will be included in relation to its
value; for example, if the buyer of an animal returns it because of a
defect, after using it for a period, he is not liable to pay for the use
of the animal, since if it had died before being returned, it would
have died as his property. These rules imply that if the merchandise
not yet possessed by the buyer is lost, it is the seller but not the
buyer who would have to bear the loss because the former enjoys
possession.
Or, in case the price of purchased goods still in possession of
the seller increases, the increase will benefit the one who is deemed
to be liable to suffer from an adverse fluctuation in price of the
goods.
Contrarily, in a contract of Shirka a condition under which
one party is entitled to a share in profit only while the other party is
made liable to the entire loss alongwith his share in profit would
contradict the above rule.**
Similarly renting out one's house on the condition that the
tenant would be liable to the value of the house if the same is
damaged due to flood or earthquake is also a contravention of the
rule because the owner who is earning its rent should also bear the
loss.
__________________________
*
**
Tyser's translation: “The burden is in proportion to the benefit and the benefit in
proportion to the burden”.
The rule is equally applicable to situations where one of the partners in a Shirka
can exercise the right to reduce his share of liability by passing it on to the other
partners, which the other partners do not enjoy. This contravenes the conditions
of similarity in rights and liabilities of the contracting partners. An example of
such a defective condition can be found in Participation Team Certificates
(PTCs) which are in practice in the banks of Pakistan.
44
The depositary who is liable to return the deposit is entitled to
take away the profit of the deposit if the same has been invested,
even though the permission (express or implicit) has been given by
the depositor.
But if the depositor lays down the condition of transfering
profits to him he will have to bear the loss, when incurred, on these
investments.
The depositor is liable to bear the expenditure of safe-keeping
because it is he who benefits from this safety.
These rules are to be made applicable to all situations where
an owner earns benefit from the property which he has transferred
or intends to transfer fully or partially to others under a contract of
sale, hire, lease, tenancy, agency, etc; or joins with another person
with a view to earning through partnership (Shirka or Mudaraba)
or sharecropping (Muzaraa). The rule guides us to decide whether
all the partners in a partnership business will be similarly entitled to
a return and liable to losses or a discrimination may be made
'between different partners on the basis of the time or amount of
their deposits in assigning their shares in profit and loss? Can some
share-holders be issued debentures or preference shares ensuring a
fixed return while some others only ordinary shares whose owners
are liable to bear the entire loss? Can an underwriter be treated
differently in sharing the profit and loss in business? Which of the
parties to a contract of leasing or hire purchase will be responsible
for bearing the expenses of maintenance, repair and insurance? Can
any set of terms and conditions of rent, hire or lease between a
lessor and lessee be validly settled? To what extent a guarantee may
be claimed from a partner, and against which kind of losses? The
answers to these and similar questions should be judged on the
basis of the criteria provided by the above mentioned rules.
45
7.
PUBLIC WELFARE VIS-A-VIS THE DISCRETION OF
THE GOVERNMENT
Respect for ownership of property is a distinctive feature of
the Islamic economic system. The objective of the Sharia seeks,
interalia, to protect the earning and property (mal) of people. This
objective can be achieved only when the legal system prevailing in
a society prevents violation of the properties of people. The holy
Prophet (peace be upon him) has emphasized this point on a
number of occassions. He is reported to have said:
“It is not permissible for a man to take away the stick
of his brother without the latter's Will”.(59)
“The property of a Muslim person is not lawful (for
anyone) except with his free Will”.(60)
The spirit implicit in such traditions led to the formulation of the
following rules in regard to the use of property by others. * “No one
may dispose of the property of another, without the latter's
permission”.(61)
** “An order by one person to dispose of (Tasarruf) the
property of another is null and void” .(62)
_________________________
*
Tyser’s translation: “The dealing by one person with the property of another
without his leave, is not lawful”.
**
Tyser's translation: “To make an order for the disposition or the property of
another is of no effect”.
46
Tasarruf (use or disposal) may be under or without a contract.
Contractual tasarruf would imply that a person makes an agreement
or authorizes someone to sell, gift, mortgage, hire, deposit or lend
another's property without the owner's consent. Tasaruf or use
without contract implies disposing of somebody's property without
his permission. An agreement made to this effect is normally
deemed to be legally ineffective while he who uses it without
permission is liable to indemnify the owner. Absence of a licence,
or permission to make such act renders it to be null and void. This
right, however, does not deny the right of lawful claimants, where
this provision is incorporated in the following rule:
*
“No one may take the property of another, except for a
lawful reason”.(63)
The clause except for a lawful apparent reason makes this
maxim applicable not only to authorization made by the owner but
also to that laid down by law or reason. The authorization provided
by law lies in levy or penalties by government which justifies the
latter's claim on the owner's property or a part of it. This does not
require the owner's wilful consent.
Reason sometime allows a -non-owner to dispose of the
property of the owner to save him from loss or damage. The
manager of a poultry farm, for instance, who is not authorized to
sell the chicken, may dispose of the whole stock for fear of the
owner's loss, let us say, due to the spread of an epidemic in case it
is not possible to expediously obtain the permission of the owner
for ___________________________
*
Tyser’s translation: “Without legal cause it is not allowed for anyone to take the
property of another”.
47
one reason or another within time. Fire fighters may drench,
destroy or dismantle inflammable erections lying in the vicinity of a
burning object, without seeking the permission of the owner.
The authority of disposal on legal or rational grounds is
equally enjoyed by the government under a different rule which
reads as follows:
* “Power in respect of the people's property must be exercised
for the public benefit”.(64)
The rule confers wide powers in the government to control. or
regulate the acquisition and use of a private property by the owner
subject to the following conditions:
(1)
The action so taken by the government should aim at
achieving public interest and general welfare; for the
government officials are supposed to act on behalf of the
entire ‘Umma for achieving public interest through
maintaining justice, eliminating corruption in society and
using all available resources for the sake of achieving what
deems to be in the interest of the ‘Umma in the present and
the future.(65) Thus the action by the government officials
should not be in conflict with these objectives.(66)
(2)
In case the government thus needs to acquire private property
it should pay just compensation to the owner because of the
rule already discussed above.(67)
___________________________
*
Tyser's translation: “The exercise of control over Rayah’s that is to say, over
subjects, depends on what is right to be done.”
48
(3)
According to some scholars the actions taken to achieve
public interest should enjoy the support of the people.(68)
The above conditions of the rule require that an Islamic
government should clearly define the duration of ownership and the
rights of disposal.
It should so legislate as to prevent others from misuse of
public or private property. The administrative machinery should be
competent to enforce the law in a just and honest manner. In case
the government needs to acquire the property owned by some of its
citizens it should publicize the contents of the property, the purpose
of acquiring it and the rate of just compensation that it intends to
pay. It should be ensured that the purpose for which the property is
to be acquired enjoys the support of the people who can impartially
judge the validity or otherwise of the purpose for which the
government intends to take over somebody's property.
8. THE ROLE OF CUSTOM AND USAGE ‘URF AND ADA’
The Holy Prophet (peace be upon him) is reported to have
declared:
“If we appoint anybody on a job and pay him his subsistence
and he then takes anything in addition to it, this is
embezzlement”.(69)
What constitutes the level of subsistence is a point that needs to be
decided on the basis of custom and usage. Another Hadith that
seems to be more specific than the above is reported by Abu Ubayd
which is conveyed in the following words:
49
“Whosever gets an office in our administration he may marry
if he is unmarried; he may get a house if he does not possess
it; he may have a riding animal if he does not own any; he
keep a servant if he does not have one. But if anybody hoards
wealth and rears a flock of camels (with government funds)
Allah shall make him rise up as the one who misappropriates
or cheats us.”(70)
It will be noticed that the Hadith does not provide for food,
clothing, medical facility and education. The probable reasons seem
to be that:
(i)
Salary system as adopted later was not introduced by the
Prophet (peace be upon him). Officials were often required to
voluntarily perform government jobs. They were paid some
sort of honorarium if the government had resources.
(ii) Education and medical facility had not yet been made
available in an organized form nor was anything charged for it
if it was provided in any form.
(iii) The two Hadiths can complement each other with the
interpretation that the former Hadith provides for subsistence
or for current or consumption expenditure while the latter
Hadith lays down the extent of allowing for capital
expenditure.
In all the above cases what comes out is that the nature of.
payment depended upon custom and usage.
The most important jobs that could be assigned to an official
were Jihad and collection of Zakat and Jizya which called for
journey to remote places and hence the necessity of a personal
riding animal and an attendant. This would not necessitate
providing any such facility in the case of one who performs desk
50
work as is quite common these days. Thus in all such matters it is
the custom and usage that has a bearing on interpreting the
application of the principles of the Sharia. The rule is that
* “Custom is a source of judicial decisions: custom whether
general or private is to be taken as a judicial decision to establish a
rule of law”.(71)
But the conditions that qualify custom and usage to have a
decisive force are:
(1)
The custom and usage should not be in defiance of the
injunctions of the Sharia. The practice of charging interest on
loan has a universal usage, but it is prohibited and cannot be
recognized.
The practice of share-cropping on the basis of fixed produce
for the land-owner may be prevalent at many places but since
it has been categorically prohibited by the Sharia, it cannot be
cited as an evidence in support.
Raffle and prizes on Bonds involve qimar and interest and
cannot be recognized.
The condition of non-refundment of earnest money in the
event of repudiation of a contract or of the non-acceptance of
a tender is against the spirit of the Sharia.
__________________________
*
Tyser's translation: “Custom is of force. That is to say, common use and custom,
whether it be general or special, is made the arbitrator for the establishment of a
Shar' judgment”.
51
The practice of forcing a borrower to work at sub-standard wage by
virtue of his indebtedness is also exploitative and hence prohibited.
Parents taking possession of dower money (mahr) of the
daughter without passing it on to her which is still prevalent at quite
a few places is also not acceptable according to the Sharia.(72)
The practice of paying fixed amounts by way of bribe to
officials are not permissible notwithstanding that custom and usage
support them.
(2)
* “The custom which is most widely prevalent and operative is
to be relied upon”.(73)
Foodgrain that was traded in the early Islamic period was
measured in terms of mudd and sa’. But it is now universally
weighed, but not measured. Thus all calculations whether for
trading or for purposes of payment of ‘Ushr or Sadaqa or
atonement (kaffara) will be made in terms of the prevalent
units of weight.
Bimetallic standard has now been universally replaced by
paper currency and should be validly subjected to all Sharia
injunctions regarding receipt, payments, calculation of Zakat
on wealth, repayment of loan, etc., in the same manner as
when the bimetallic standard was prevalent.
__________________________
*
Tyser's translation: “Custom is only given effect to, when it is continuous and
preponderant”.
52
(3)
* “Credence is to be given to that which is publicly and
generally operative, and not to what is rare (or little seen).(74)
It seldom happens that some parents present to their daughters
returnable gifts. But the regular custom is to provide dowry
for good. In case of any dispute on the point of ownership it is
the , predominant custom that will be made a precedent.(75)
Subject to the conditions laid down above the main rule
“Custom is a source of judicial decisions" shall be made
applicable. Thus ** "what is a matter of common practice has the
same effect as an express condition.”(76)
In case a person authorizes another to sell something on his
behalf without laying down conditions as to sale price and unit of
currency, the agent will be treated to be bound by conventional
rules of charging a reasonable price and prevalent currency.
An attorney would be expected to rent his principal's house,
machinery or workshop on the terms and conditions customarily
prevalent in the market.
An owner can sell the fruits of his trees when they mature but
cannot compel the purchaser to collect them before these are
customarily usable.
___________________________
*
Tyser's translation: “That is esteemed preponderant which is commonly known
and not that which rarely happens”.
**
Tyser’s translation: “A thing known by common usage is like a stipulation which
has been made”.
53
A contractor is expected to erect the premises of a standard
which is customarily acceptable.
In none of the above cases the detail understood by common
usage would need to be mentioned.(77) Another rule supplementing
the above lays down: * “Custom has force to make void a fact”.(78)
It would be pertinent to clarify at this stage that general
prevalence and universality do not necessarily involve the entire
population, in regard to all the customs and usages. Different
groups may have their customs and usages that unconcerned people
are not supposed to know. For example, merchants may have
their customs which all of them respect and follow. As a result
** “Matter of common practice amongst merchants has the same
effect as express conditions between them.(79)
This will not, however, bind non-merchants to follow the
custom, nor allow them to make any claim on that ground.
Gestures, signals and code words in the stock
exchange/commodity exchange may amount to a contract among
brokers, but this may not be an effective mode of contract for
others.
Sale by auction may have different techniques at different
places, and those techniques might be given the force of law.
__________________________
*
Tyser's translation: “Under the guidance of custom the true meaning is
abandoned”.
**
Tyser's translation: “A thing known amongst merchants is as though fixed by
stipulation between them”.
54
It is this rule that allows a government to take into account
contemporary standards to determine the cost of living and
subsistence level, to define the cost of production and to lay down
exemption limit for taxation and fix salaries and wages.
9.
PENALTY FOR EVASION
The Rule that * “He who hastens an event in order to acquire
a thing before its time will be punished by being denied that
thing.(80)
provides the government with wide powers to penalize evasions * *
and circumventions through legal devices. Thus withdrawals of
deposits to evade deduction of Zakat, transferring or gifting of
property to the successors to escape land reforms, cordoning plots
of land to qualify for grant of free/low priced land to the bonafide
occupants and all such acts that are aimed at taking undue
advantage of legal provisions and thus defeating the purpose of a
law or an institution can be set aside by the government provided
that the malafide of the person is proved.
____________________________
*
Tyser's translation: "Any person who hastens a thing before its time is punished
by being deprived of it.
**
Among the examples of such escape as cited by the jurists is a man's divorce to
his wife, while on his death bed, with a view to depriving her of her share in
bequest. This, according to Hanafites is talaq firar under which the widow is not
deprived of her share. Another example is a legatee's killing of his legator to
hasten the possession of his property. Such a killer is deprived of his share in the
bequest (Zarqa, 1008-09).
55
10. LIMITATIONS
(1) As to analogy
In the forgoing pages a number of instances have been
adduced in order to show the practices and institutions which
have been approved on account of necessity which otherwise
could not be permissible under the ordinal)' rules of the
Sharia. This explains the legality of mudaraba, muzaraa, bay
salam, etc. Contracts like bay’ salam may be adduced by
some to support the existing practices of mark-up or
murabaha etc., in which the sale takes place without
possessing the goods actually being transferred and without
the seller even having the capacity to deliver the goods. The
legal maxim that determines the Sharia position of such
contracts is contained in the rule * “What is proved to be
opposed to qiyas (analogy) cannot form the basis of further
qiyas.”(81)
In other words if a contract / transaction is legalized in
defiance of the basic principles of the Sharia the legality of
such transaction / contract shall not be adduced by way of
analogy in support of a similar other contract. The contracts
like mudaraba, bay' salam etc., which cannot be otherwise
justified on the basis of analogy were allowed by the Prophet
(peace be upon him). The legality of these transactions is of
an exceptional character and hence it may not be cited as an
evidence for supporting any other contracts.
___________________________
*
Tyser's translation: “A thing established contrary to legal analogy (Qiyas) cannot
be used as an analogy for other things”.
56
(2)
As to tricky device (hila)
Concluding the above discussion it seems relevant to make a
hint at the technique of adopting a tricky device, hila, to
circumvent a prohibition. The early fuqaha’ ingeniously
devised some techniques in case somebody got in trouble for
want of a legal solution to his problem. Some unscrupulous
persons at later times misused the technique to tread upon the
prohibited path. When the financiers in some cities refuse to
extend loans to traders, the fuqaha’ devised the technique of
buy-back (bay’ bi’l-wafa’) which implied an incomplete sale
transaction. The goods sold by the trader was treated as a
mortgage with the purchaser and returnable after the price
paid by the purchaser was returned to him. The transaction of
a sale authorized the purchaser to benefit from the purchased
goods which could not be permissible in the case of direct
mortgage. In a lawful device, an indirect, and sometimes
doubtful technique is adopted to achieve a lawful object. But
if the object itself is unlawful the technique, even though
legally permissible, would be condemned. Even in the case of
lawful device and object the point that needs to be
remembered is that such devices' are resorted to only for
individuals in order to get out of an impasse and are confmed
to a very short period. Thus hila cannot be adopted as bases
for the policies of states, the Muslim societies, and social
institutions and become a regular modus operandi on a
permanent basis.
57
NOTES AND REFERENCES
1.
Distinction should be made between principle (as!), rule
(qaida) and regulation (dabit). Principle, in context of the
subject is drivable from the Qur’an and the Sunna; rule,
though not equally comprehensive and authorititative, covers
a number of diverse acts; regulation may be based on a rule
but it covers a single sphere of activity.
2.
Passim. Some jurists opine that profit also should be shared in
proportion to capital contribution (the Shaft i Al-Ramali, Vol.
5, p. 11). However this is not emphasised by majority of
jurists.
3.
Passim. Delay in advance payment by a couple of days or so
is acceptable according to Malik (Ibn Rushd, 2, 202).
4.
Passim.
5.
Majalla, Art 2, Also Ibn Nujaym, p. 10. Here and hereafter
English translation of these legal maxims as rendered by the
late Mr. Justice A.R. Cornelius has been relied upon (PLD
No. 1, Vol. XVIII, Journal of Supreme Court of Pakistan),
unless otherwise stated. C.R. Tyser’s translation is reproduced
in the margin for comparison.
6.
Ibn Nujaym, pp. 10-12; Suyuti p. 8, sqq.
7.
Majalla, Arts. 769-770.
8.
Ibn Nujaym 12. Majallah, Art. 648-49.
9.
Majalla, Art. 3.
58
10.
Majalla, Art. 648-49.
11.
Majalla, Art. 4.
12.
Ibn Nujaym, pp. 34-35.
13.
Majalla, Art. 9.
14. Majalla, Art. 74.
15.
Majalla, Art. 8.
16. Majalla, Art. 19.
17. Ibn Maja, Sunan, Kitab al-Ahkam (man banaji haqqihi ...).
18.
Majalla, Art. 20.
19. Hudud are punishments for killing, theft, fornication, dacoity,
and rebellion as prescribed in the Qur’an.
20. Ibn Nujaym, 58.
21. Majalla, Art. 6.
22. Majalla, Art. 7.
23. Majalla, Art. 30.
24. Majalla, Art. 31.
25. Majalla, Art. 25.
59
26. Majalla, Art. 27.
27. Anyhow, in case the piece of jewellery was lost due to neglect
of the owner himself the machine will not be damaged.
28. Majalla, Art. 26.
29. Majalla, Art. 29.
30. Bukhari, Kitab-al-Buyu, (Chapter, hal yabi hadir Ii bad.)
31. Majalla, Art. 74.
32. Some scholars (Az-Zuhayli, 4,35) have treated birth control as
a device based on the imaginary fear of the scarcity of
resources that Allah has promised (Qur’an 5:66; 7:96).
33. The holy Prophet (peace be upon him) is reported to have
said: "The religion is easy" and, "Before Allah the best way is
adjustment and allowance" (See Bukhari Kitab-al-1man). He
has also said: "Facilitate but do not make difficult". Bukhari
Kai-11m.
34. For details of such hardships and relaxations c.f Ibn Nujaym
p. 50, sqq.
35. For both conditions c.f. Bukhari, Kitab-al-Buyu, (Chapter
Bay' Zabid - - - ).
36. Bukhari, Kitab-al-Buyu, (Chapter Bay Thamar ala ru'us 37. Bukhari, Kitab-al-Buyu, (Chapter Bay al-taam qabl- - - ).
- ).
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38. Ibn Nujaym, 50, 51.
39. This, however, does not approve of transactions involving
gharar (uncertainty), for example the sale of foetus in the
womb which has been disapproved by the holy Prophet (peace
be upon him).
40. Majalla, Art. 21.
41. Az-Zuhayli, 3, 516-17.
42. This is Zuhayli's list but the permissibility of the act of killing
under compulsion is not supported by all the jurists. Similarly
the violation of the right to one's property is not unqualified.
43. Also Majalla, Arts. 22, 23, 24.
44. Majalla, Art. 33.
45. Majalla, Art. 32.
46. As-Sulami, Vol. 1,9.
47. Zarqa, 2, 993.
48. Majalla, Art. 21.
49. Ibn Nujaym, 57, Majalla, Art. 18 (brief).
50. Bukhari, Kitab al-Wikala, (Chapter on man ahya ardan
mawatan).
51. Majalla, Art. 23.
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51A. Majalla, Art. 34.
52. Majalla, Art. 35.
53. The Qur'an: Against interest 2:275, 278; against theft and
robbery 5:33,38; against wine 2:219; against obscenity 6:152;
7:33; 16:90; against breach of trust 8:27; against corruption,
immorality and disorder (fasad), 2:27; 2:204, 205).
54. Majalla, Art. 91.
55. c.f. Az-Zuhayli, 5,66. The Hadith could not be available in
well-known compilations.
56. Majalla, Art. 87.
57. AI-Nasai: Sunan. (K-al-bay). Also Ibn Maja: Sunan, Chapter
on tijarat. Also Majalla, Art.85 (translation mine). The
background of the Hadith is narrated to be a dispute between
a buyer and a,seller of a slave whose defect was detected after
the buyer had benefited himself from his service for quite
sometime. When the buyer returned the slave the seller
claimed the share of slave's earning that the buyer had
acquired during the period. The holy Prophet (peace be upon
him) ruled that the seller had no right to claim this earning
because the benefit of a thing is (a return) for the liability for
loss (from that thing). This meant that had the slave caused a
loss to the buyer, the latter alone would have been the sufferer
and could not make the seller liable to this loss. It should be
noted that the rule governs the return that is contributed by
human effort but not physical growth or that produced by
nature which is governed by a different rule. The translation
of another Hadith conveying the same sense is: “The sale of
what is not in your possession is not permissible nor the profit
62
arising from something which is not in one 's charge (Ibn
Maja, Chapter on “tijarat”).
58. Majalla, Art. 88. according to some the rule is derivable from
a Hadith providing that a mortgage will not be fore-closed for
the one who has mortgaged it. He shall have its benefit and
shall suffer its loss (c.f. Az-Zuhayli, 5,258).
59. Bayhaqi: Sunan Kubra, Kitab-al-Ghasb, man ghasaba
lawhan
60. Ibid.
61. Majalla, Art. 96.
62. Majalla, Art. 95.
63. Majalla, Art. 97.
64. Majalla, Art. 58.
65. Al-Zarqa, 1044.
66. Thus every act or disposition arbitrarily made by government
functionaries superceding the above mentioned objectives or
any action leading to harm or corruption (fasad) is unlawful.
Al-Zarqa has listed the following dispositions which cannot
be made by officials:
-
Abrogation or pardon of punishments awarded under
Qur’anic law (hadd) or penal law. This may encourage
commission of crimes.
63
-
Refusing personal rights of the aggrieved party or setting
aside the decree of the judges.
-
Refusing the audit of public property.
-
Allowing unlawful practices on the pretext of earning
revenues through taxes.
-
Appointment of dishonest or incompetent persons to
public offices. (Al-Zarqa, pp. 1044-45).
67. The legal maxim is: “Constraint does not destroy the right-Of
others”
68. Abu Daud, Sunan, Kitab al-Kharaj . . . (Chapter ji arzaq al
‘Ummal).
70. Abu IUbayd, Para 651.
71. Majalla, Art. 36.
72. Distinction should be made between mahr which is the
exclusive right of bride and presents and gifts that are
presented to the children on different social functions and
ceremonies which the parents may dispose of according to
custom. (Majalla, Art. 876).
73. Majalla, Art. 41.
74. Majalla, Art. 41.
75. Majalla, Art. 69.
64
76.
Majalla, Art. 43.
77. Al-Sulami,2,126-27.
78. Majalla, Art. 40.
79. Majalla, Art. 44.
80. Majalla, Art. 99.
81. Majalla, Art. 15.
65
BIBLIOGRAPHY
1.
The Qur’an, as translated in English by M. Marmaduke
Pickthall.
2.
Abu ‘Ubayd al-Qasim b. Sallam: Kitab al-‘Amwal, Cairo,
1968.
3.
Al-Bayhaqi, Abu Bakr Ahmad b. al-Husayn b. ‘Ali: Kitab AlSunan al-Kubra, Vol. 6, Hyderabad (India).
4.
Al-Bukhari, Muhammad ibn Ismail: Sahih Bukhari, Text with
Urdu Tr. Muhammad Said and Sons, Karachi, n.d.
5.
Ibn Maja, Muhammad b. Yazid: Sunan, Text with Urdu Tr.
Muhammad Said and Sons, Karachi, n.d.
6.
Ibn Nujaym, Zayn al-‘Abidin: Al-Ashbah Wa'n-nazair,
Calcutta, 1270 H.
7.
Ibn Rushd, Muhammad b. Ahmad: Bidayat-al-Mujtahid wa
Nihayat-al-Muqtasid, Vol. 2, Matba'a Mustafa al-Babi, Misr,
1950.
8.
Majalla al-Ahkam al-Adliyya, Reprint Karachi, n.d.
9.
Nasa'i, Ahmad ibn Shu'ayb: Sunan, Text with Urdu Tr.
Lahore, n.d.
10. Al-Ramali, Shamsuddin Muhammad b. Abi al-'Abbas:
Nihayatal-Muhtaj Ii Sharh al-Minhaj, Vol. 5, Cairo, 1938.
66
11. AI-Swami, Izzuddin ‘Abd-al-Aziz b. 'Abd-aI-Salam: Qawaid
al-Ahkam fi masalih al-anam, Cairo, 1968.
12. AI-Suyuti, JaIaIuddin
wa'nnaza'ir, Cairo, 1959.
‘Abd
aI-Rahman:
Al-Ashbah
13. AI-Zarqa, Mustafa Ahmad: Al-Madkha/ a/-jiqhi a/-Ammo
Vol. 2, Beirut, 1952.
14.
al-Zuhayli, Wahba, Al-Fiqh al-Islami wa Adillatuhu, Vol. 3,4,5 2nd
Ed. Damascus, 1985.
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APPENDIX
LEGAL MAXIMS USED IN THE STUDY
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69
70
71